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The Life After Coal Campaign’s 3 important submissions on government’s latest proposed electricity regulations and plans

5 June 2020 at 12:09 pm

In the past months the country has seen some important legislative and administrative proposals for South Africa’s electricity system emerge from the Department of Mineral Resources and Energy (DMRE) and the National Energy Regulator of South Africa (NERSA). They are:

  1. A draft determination for immediate term capacity for 2 000MW new generation capacity to come from a range of sources; including co-generation, distributed generation, and biogas – now recently approved by NERSA. The draft determination was published for comment at the end of March 2020 by NERSA as part of a legally-required public participation process for NERSA to decide whether to concur with the Minister of Mineral Resources and Energy regarding the determination, which the Minister had signed. NERSA, through an expedited process, is reported to have confirmed its approval for this determination – although it is not yet clear whether any changes have been made to the version that was published for comment, as the final, approved determination has not yet been published. The DMRE told Parliament that it is now working with the IPP Office to prepare bid documentation relating to this 2000MW of new capacity, to be released by July.

The Life After Coal Campaign’s comments on this determination are available here. The Campaign has no objection to the generation of electricity from distributed and cogeneration to address immediate term electricity supply constraints, provided the sources relied upon are clean (renewable and not fossil fuels), affordable, in the best interests of the public, and aligned with the Constitution and other applicable laws.

  1. A draft determination for short to medium term capacity from: renewable wind and solar (6 800 MW); storage (513 MW); coal (1 500 MW); and gas (3 000 MW. As with the above determination, this draft determination was published for comment at the end of March 2020 by NERSA as part of NERSA’s mandatory consultation process to decide whether to concur with the determination. NERSA states in its consultation paper that it envisages a 6 month period for this consultation process, which will include public hearings.

The Life After Coal Campaign’s comments on this determination, dated 7 May 2020, are available here. The comments provide detailed objections to the proposed coal and gas allocations in the draft determination, setting out the legal obligations of the Minister and NERSA in making a decision for new generation capacity. The Campaign also recommends, as a practical measure, that the different generation capacities with varying timeframes, should not all be included in the same determination (as is currently the case), and the allocations for shorter-term renewables and storage must be prioritised.

  1. Proposed amendments to the Regulations for New Generation Capacity under the Electricity Regulation Act, 2006. The effect of the draft amendment to the regulations is to establish a process in terms of which municipalities, meeting certain requirements, can apply to the Minister for permission to establish new electricity generation capacity.

The Life After Coal Campaign’s comments are available here. The position of the Campaign is that the draft amendments to the Regulations, to provide for a process for municipalities to apply to the Minister for new generation capacity, are redundant and not aligned with the legal position. The prior approval of the Minister is not required by law in order for a municipality to establish generation capacity. Further, government has an obligation, at all levels, to ensure that electricity decision-making encompasses and gives effect to the Constitution and Bill of Rights – including the right to an environment not harmful to health or wellbeing. Insofar as a municipality intends to supply efficient, clean and affordable electricity to its people and to reduce its greenhouse gas (GHG) emissions, it must not be impeded in doing so, particularly in light of the harms caused by coal-fired power in South Africa; current electricity constraints; and the urgent need for clean and affordable electricity to be developed as soon as possible. In other words, national government should not serve as a barrier to the local governments that are seeking to fulfil their Constitutional obligations and provide clean and healthy electricity to the people they serve.

All of the above submissions highlight the irrationality and unconstitutionality of any decisions to proceed with the development of new fossil fuel electricity generation capacity. They emphasise the fundamental role to be played by local government in expediting the transition to clean energy, which is urgently needed. The transition must be just and it must be prioritised by government at all levels.

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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